April

April 1 - 9

"It really isn't at all clear that there's something criminal here," Daniel Richman, a former federal prosecutor and a professor at Columbia Law School. "I would expect that the prosecutors who are looking into this case are on a very different timetable and with very different pressures than the legislative staff who are looking into it."

"Had Zimmerman been a cop, the political, social and emotional response might have been about as urgent as the response to the shooting of unarmed Ramarley Graham in his own home," says Columbia Law Professor Jeffrey Fagan. "New Yorkers seemed more outraged by the Martin killing than by the killing of Graham."

Health and legal experts say 20-somethings have much to lose if the Supreme Court follows Clement’s advice. Abbe Gluck, a professor at Columbia Law School, said the Supreme Court should focus its decision on the individual mandate while leaving Congress to decide what should be kept if it’s struck down.

“What will affect them the most is if the court says the mandate is unconstitutional and the whole statute has to go with it,” said Gluck, who specializes in health care law. “It’s critical for the provisions that protect young people because those are all going to go.”

“This decision flies in the face of the city’s own traffic studies showing that the ramps would allow intolerable traffic on the Van Wyck Expressway,” said Michael B. Gerrard, a Columbia University law professor who is also representing property owners. “We will examine the documentation underlying this action and consider our legal options.”

John Coffee, a law professor at Columbia University, said that any lawsuits will in large part depend on how much of a hit Groupon’s stock takes in the next few weeks. The revisions make Groupon a “more inviting target” for litigation, said Coffee.

China's outward foreign direct investment (FDI) hit $68 billion in 2010 after more than doubling in 2008 to $52 billion from $23 billion in 2007, according to Karl Sauvant, from the Vale Columbia Center on Sustainable International Investment at Columbia University and an expert on global FDI.

Scholar and Harvard University librarian Robert Darnton vowed that the Digital Public Library of America, a nonprofit, nationwide effort to digitize and offer access to millions of free, digitized books and special collections would launch by April of 2013. “I make this promise to you,” Darnton said at the close of his talk, entitled “Digitize, Democratize: Libraries and the Future of Books": “We will get this done.”

Darnton made his remarks as the featured speaker at the 25th Annual Horace S. Manges Lecture, hosted by the Kernochan Center for Law, Media and the Arts at Columbia Law School.

“The big money is in the big ones,” said Michael Graetz, a tax law professor at Columbia University in New York. “Camp understands the difficulties, and I don’t think he wants to say too much until he can see a way forward.”

Robert Darnton, director of Harvard’s University Library, delivered the 25th annual Horace S. Manges Lecture at Columbia Law School’s Kernochan Center on April 2. Entitled Digitize, Democratize: Libraries and the Future of Books, Darnton’s case for the Digital Public Library of America (DPLA) made extended analogies between the current situation and the commercial monopolies that preceded the creation of copyright in early modern France and England, as well as to Britain’s enclosure movement.

To put it mildly, the latest round of redistricting has not been the most edifying experience. Over the past year, politicians have assembled throughout the country to carve districts that are equal in population, but that otherwise serve their own interests rather than the public’s. Protracted litigation has determined, on a case-by-case basis, which districts will be represented by minority groups. And the courts have been intimately involved not just with minority representation but also with every other aspect of the process. Already, in the current cycle, more than 150 lawsuits have been filed.

President Obama signed the JOBS Act Thursday and called the law -- aimed at helping startup firms raise capital -- a "game-changer." Opponents said the law rolls back investor protections. Jeffrey Brown leads a debate on the the law's intentions and risks with CareCloud's Albert Santalo and Columbia Law School's John Coffee.

The selection of a successor to Robert Zoellick as President of the World Bank was supposed to initiate a new era of open meritocratic competition, breaking the traditional hold that the United States has had on the job. Indeed, Zoellick’s own appointment was widely regarded as “illegitimate” from that perspective. But US President Barack Obama has let the world down even more distressingly with his nomination of Jim Yong Kim for the post.

Professor Darnton, speaking at Columbia Law School earlier this week, made the public promise that the Digital Public Library of America, a non-profit initiative first dreamed up in October 2010, "will be up and running by April 2013, and its initial holdings will include at least two million books in the public domain accompanied by a dazzling array of special collections far richer than anything available through Google".

"It's not simply that you use material nonpublic information, but you have obtained that by misappropriating it or obtaining it in breach of duties you owe someone," says John Coffee, a securities law professor at Columbia Law School.

Among those are jurisdictional borders, shrinking budgets, small staffs, a lag in technology and often inadequate reporting requirements, said Cindy Lott, who directs the Charities Regulation and Oversight Project of the National State Attorneys General Program at Columbia Law School.

The Office of Information and Regulatory Affairs (OIRA) recently issued a two-page directive requiring agencies to engage in a new form of analysis: the cumulative impact of their rules. This directive follows Executive Order 13,563, issued in January 2011, which asked agencies to include in their rulemaking consideration of, “among other things, and to the extent practicable, the costs of cumulative regulations.” It emphasized that some “sectors and industries face a significant number of regulatory requirements, some of which may be redundant, inconsistent, or overlapping,” and directed agencies to promote “coordination, simplification, and harmonization.”

On March 1, a broad coalition of public interest organizations wrote to the governors of every state, urging them to decline a bid from Corrections Corp. of America to buy up public prisons and turn them into private facilities. Significantly, this proposal from the largest for-profit prison company in the country did not come without strings attached. It stipulated that the seller must have a minimum of 1,000 beds, agree to let CCA operate the institution for no less than 20 years and guarantee to keep the prison at least 90 percent occupied. In light of the mass incarceration epidemic — with 5 percent of the world's population, our nation confines 25 percent of all prisoners — the last thing we need is to expand an industry invested in maximizing the number of inmates. The past three decades have seen a proliferation of private prisons. During this time, their advocates have failed to make the case for handing an archetypically public function over to profiteers. The governors ought to heed the letter's advice: CCA's offer is one that can, and should, be refused.

So it’s no wonder that, in Washington state, coal companies are now proposing two large export terminals to ship tens of millions of tons of coal from the Powder River Basin in Wyoming out to countries like China. Whether that’s the start of a trend remains to be seen: There are a number of hurdles, particularly with respect to rail infrastructure, that will make it difficult for the U.S. coal industry to reorient itself toward exports in rapid order. (For more on that, see this paper from the ColumbiaCenter for Climate Change Law.)

April 10 - 27

Prof. Michael Graetz of Columbia Law School has proposed what I believe is a MacArthur-like solution to tax reform. He would abolish the income tax for the vast bulk of Americans and replace the revenue with a 12.5 percent value-added tax. People would pay their taxes when they buy things and wouldn’t need to worry about keeping records or filing tax returns at all.

Net neutrality, for those new to this particular soap opera, is an idea proposed not by Internet designers or engineers but by law professors. It advocates for the squishy idea that network operators should be required to “guarantee that similar content gets treated similarly,” as Columbia’s Tim Wu recently put it. (Wu is credited with having coined the term years ago.)

At 4 AM on Thursday, March 22, Malians were informed through the national broadcasting station that a military coup, led by a mid-ranking army captain, Amadou Sanogo, had unseated the country's elected president, Amadou Toumani Toure. The coup surprised most people in Mali, including perhaps the army itself, whose demonstrations on March 21 were meant only to protest the government's handling of a rebellion in the country's north. But while it is possible the coup was unplanned, demonstrations had been going on since January, after 160 Malian soldiers were killed by Tuareg rebels in Aguelhok, in northern Mali.

Daniel C. Richman, a criminal law professor at Columbia University, said Walton might make it even harder on the prosecutors to succeed this time around. “It appears that he has real issues with the government’s pursuit of the case and threw a brushback pitch at them last time,” Richman said. “Had this been a murder case, I doubt that the judge would have talked about reimbursement for the defendant. It shows a level of solicitude for the defendant that you don’t normally see.”

Columbia Law Professor John Coffee, for instance, who’s not exactly a hair-on-fire, anti-market reformer, told the Senate last year that the removal of the requirement for broker-dealer registrations for those soliciting investment on the internet was so carelessly done, you could have renamed the proposed bill the "Boiler Room Legalization Act of 2011."

But now criminal authorities are once again actively weighing criminal charges against senior officials at the firm, including Corzine, based on the prospect of O’Brien’s testimony. Even if Corzine didn’t give direct orders to use customer money, people with direct knowledge of the investigation say he could still face charges of “conscious avoidance” or that he was willfully ignorant that customer funds were being improperly or possibly illegally used. “That is the only way I see that they can go forward with a criminal case,” said Columbia law school professor John Coffee. “It’s her exchanges with senior management including Corzine” that could lead to charges.

Sixteen arbitration specialists at this year’s Columbia Arbitration Day looked at the challenges that arise when arbitrating with a sovereign state – with a focus on investment treaty cases. The co-chairs of the conference, Columbia Law School students Diogo Ciuffo Carneiro, Marcela Cursino de Moura Levy, Paula Henin and Iuliana Iancu, report.

I've long loitered in the shadow of Richard Gardner, the eminent diplomat and professor at Columbia University Law School—not that he or Columbia had any idea about this when the law school invited me to a conference where a hundred of his students, many currently at the controls of international power, returned to the campus to honor the professor upon his retirement.

The Constitution of the United States creates a national government of enumerated and therefore limited powers. Accordingly, troubled members of the Court should be applauded for their efforts to search for the limits to any principle advanced to uphold the health care mandate of the Affordable Care Act (ACA), not made the target of strident and caustic criticism. The Court is a great institution, and its members don’t deserve such abuse.

Manhattan federal court Judge Shira Scheindlin on Monday said Columbia University professor Jeffrey Fagan, a criminology expert, would be allowed to testify about his "stop and frisk" research showing that police were more likely to stop blacks and Hispanics than whites.

Fagan was the proposed expert witness on behalf of four named plaintiffs -- who brought claims on behalf of a putative class of blacks and Hispanics -- in the broadest lawsuit yet to challenge the police practice of stopping and questioning people considered suspicious.

"What Aereo is doing, according to the various television stations who are suing it, is retransmitting their over-the-air signals, and under the copyright law, one can't retransmit broadcast signals without a license," says Jane Ginsburg, professor at Columbia Law School.

John Coffee, a professor at Columbia Law School and Law Journal columnist, chairs a subcommittee on judicial support and engagement, examining how to provide support to judges to deal with their caseloads. The group will also look at Judge Lippman's proposal to create a new class of judges appointed to the Court of Claims and assigned to the Commercial Division.

Henry Paul Monaghan, a professor of constitutional law at Columbia Law School, is the latest conservative to support the constitutionality of the Affordable Care Act. In a column, he approved of the Supreme Court’s aggressive sequestering of Solicitor General Donald Verrilli.

John Coffee, a securities-law professor at Columbia University, said other companies in the communications industry have encountered similar issues and remedied them by purchasing shares from investors at a premium.

"It's pretty heavy handed," he said. "News Corp. is solving the problem at the expense of specific shareholders rather than at the expense of the company."

"Vikram Pandit's pay this year was scheduled to be more than [Goldman Sachs CEO] Lloyd Blankfein's.And when I talk to shareholders and ask about that, they have a hard time understanding, in light of the fact that Goldman Sachs has had a much better year than Citigroup," says Robert J. Jackson, Jr., an associate professor of law at Columbia Law School who researches executive compensation. Nearly two-thirds of Citi's shareholders are large institutions like mutual funds and pensions.

Preferring therefore to discourage such proposals, Wachtell also claims that it is “inappropriate” for a law school’s clinical program to assist clients that are not “impoverished or underprivileged.” However, as the Columbia law professor Jeffrey Gordon explained in a response to this claim, clinics that advance the contested agendas of clients who are neither impoverished nor underprivileged are (for good educational reasons) are standard at law schools nationwide. These clinics do not represent the views of the law schools in which they operate but only those of the clients and, in some cases, of faculty and students who choose to work in a particular clinic.

At their annual meeting, Citigroup shareholders gave a no-confidence vote to a $15 million compensation package for the company's CEO. It's the first time this kind of vote has happened at a Wall Street firm. Lynn Neary talks to Columbia University Law School professor Robert Jackson about the implications of the vote.

HUMAN IMPACTS INSTITUTE – April 19

A Call for Climate Action From Former President of the Maldives

On Thursday March 29, 2012, President Mohammed Nasheed, the former head of the Maldives, was interviewed by Professor Michael Gerrard, head of the Center for Climate Change Law at Columbia University. The packed audience watched 3 videos to start the event: the first on the Underwater Cabinet Meeting of 2009, then the movie trailer for the newly released film, The Island President, and finally the inside story on the recent coup which forced President Nasheed to resign from office this past February.

The justices are supposed to act judiciously, respect precedent and not assume the policymaking role of Congress. It is for these and other reasons, explains Jonathan Cohn, that Silberman and four other prominent, respected main-line conservative judges and legal scholars argue that the Affordable Care Act is constitutional. Deeply conservative Columbia University constitutional law professor Henry Paul Monaghan says the law is valid based on "settled judicial principles."

Richard N. Gardner's teaching career at Columbia Law School has spanned nearly six decades and waves of social and political change, both on campus and in the wider world. But at least one constant has remained: On the eve of his retirement in July, he is still teaching "Legal Aspects of U.S. Foreign Economic Policy," the course with which he inaugurated his career at Columbia in 1955.

The expert community has few answers for these novel questions. At a 2011 conference entitled "Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate" held at Columbia Law School, researchers and academics addressed these novel issues. They discussed where islanders would move, whether or not they would lose statehood status after relocation and the political turmoil that would surely follow when these Diasporas scattered around the globe. At the end of the conference, co-sponsoring representatives from the markedly vulnerable Republic of the Marshall Islands gave a rather alarming, heartfelt and sincere speech of clarification. In essence, the speech went like this: I am sorry if you have misunderstood, but we have not given up yet. We are staying on our islands and will fight for our home until the bitter end.

There are different SOX implications in those (alleged) facts for Wal-Mart's former top lawyer and its former CEO. The law's gatekeeper provisions for lawyers were very controversial as the Securities and Exchange Commission drafted its enforcement rule in 2003. Corporate lawyers were concerned that senior execs wouldn't consult them on serious issues, for fear the lawyers would run to the board. In fact, the SEC has not taken action against any lawyer for failing to report up the chain, according to Columbia Law School professor John Coffee and SEC Actions blogger Thomas Gorman of Dorsey & Whitney. (An SEC spokesman confirmed that there's been no formal enforcement of the gatekeeper rule.)

“Several cases found that the issue of climate change liability raises political questions that are more appropriately confronted by Congress and the executive than by the courts,” says Michael Gerrard, director of the Center for Climate Change Law at Columbia University.

"Civil liberties will be an important aspect of foreign policy and national security in the coming years," says CFR Adjunct Senior Fellow for Law and Foreign Policy Matthew C. Waxman. The winner of the 2012 U.S. presidential elections will face challenges related to counterterrorism powers and practices, as well as challenges related to privacy rights, he says.

Columbia Law School has implemented an innovative group mentoring program for its first-year students, connecting them with multiple second- and third-year peer mentors at key times during their inaugural year of study.